SUMMARY OF THE JUDGMENT REGARDING THE DETENTION CONDITION IN "OFER" CAMP (H.C. 3278/02)

The Court ruled today on the petition directed against the conditions of detention of those detained during Operation Protective Wall and currently being held in Judea and Samaria.

Beginning in September 2000, Palestinians terrorist activity intensified in Judea, Samaria and Gaza, and within Israel itself. Hundreds were killed and wounded. On 29.3.2002 the government decided to carry out a large-scale operation: Operation Protective Wall. The goal of this operation was the destruction of the Palestinian terrorist infrastructure. The Israeli security forces entered Palestinians cities and villages and detained many suspects. At the height of the military activity about 6000 people were detained. After an initial screening took place in temporary facilities, which operated mainly during the first days of warfare, the detainees were moved to a central detention camp located in the area, the Ofer Camp.

	A petition directed against the detention conditions in the temporary facilities and the Ofer camp, both located in Judea and Samaria, was submitted to the Court. The petitioners claimed that the conditions in the temporary facilities – and in the Ofer camp itself – were inhumane and stood in contradiction to local and international law. The respondent (the IDF Commander in the West Bank) claimed that at the beginning of Operation Protective Wall, as a result of the large number of detainees, it was impossible to immediately provide satisfactory detention conditions, as defined by conventionally accepted standards. At that time, there was, in the respondent’s own words, “a big mess.” However, this state of affairs lasted for only a short period of time. Soon after, the IDF rapidly equipped itself to deal with this situation. Most of the temporary facilities were shut down, and the conditions of detention in the Ofer Camp were improved, such that each of the detained persons was provided with reasonable detention conditions, in accordance with both Israeli and international law.
	The court (President Barak, with Justices Beinisch and Englard concurring) held that the law regarding the detention of persons arrested during warfare, as opposed to convicted prisoners, is based on the law of the area, where the arrests took place and where the facilities are located, the principles of Israeli administrative law, and international law. The law reflects a balance between the individual’s fundamental rights and society’s need to defend itself. In spirit, the law states that, in recognition of their fundamental human dignity, detained persons should be treated humanely. The court stated that “even those suspected of terrorist activity of the worst kind are entitled to conditions of detention which satisfy minimal standards of humane treatment and ensure basic human necessities. We would not be human ourselves if we did not guarantee a standard of humanity to those detained within our custody. Such is the duty of the commander of the area in accordance with international law, and such is his duty in accordance with the foundations of our administrative law. Such is the duty of the Israeli government in accordance with its essential character – Jewish, democratic and fundamentally humane.” (paragraph 24 of the verdict).
	As such, the Court held that the detention conditions in the temporary facilities did not meet minimal standards. Even taking into account the large number of detained persons and the first few days of warfare, there was no justification for the conditions of detention – for example, handcuffing which resulted in fierce pains, keeping detained persons outdoors for up to 48 hours without access to bathrooms, and failing to document the possessions which were taken from the detained persons. These were unqualified breached of the law, with no security justification. The Court emphasized that “Operation Protective Wall was planned in advance. One of its goals was to arrest as many suspected terrorists as possible. As such, the need for minimal detention conditions was an inherent requirement of the goals of the operation. There was no surprise in the matter. There was the possibility of preparing an area with suitable detention conditions. What was done a number of days after the beginning of the operation should have been done before its start” (paragraph 26 of the verdict).
	With regard to the conditions at the Ofer Camp, the Court held that, in the first days of the operation, during which many detainees entered the facility, a number of minimal requirements with regard to the conditions of the detention were breached – there was unbearable crowding, a substantial number of the detainees were left unprotected outdoors, and there was an insufficient supply of blankets. These breaches of law had no security justifications. However, improvements were soon made at the Ofer Camp, such that the conditions provided there now satisfy minimal required standards, and, in some cases, exceed them. Nevertheless, the Court stated that two matters still demand improvement. First of all, the army should reconsider supplying tables at which the detainees can eat. The respondent did not offer satisfactory security justifications to explain the absence of such tables. “Detainees are not animals and they should not be forced to eat on the ground.” (paragraph 28 of the verdict). Secondly, newspapers, books and games should be supplied to the detainees. Such is the duty of the respondent in accordance with the law, and this does not interfere with security.
	For the reasons stated above, the petition was dismissed.